http://www.va.gov/vetapp16/Files4/1634360.

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Citation Nr: 1634360
Decision Date: 08/31/16
DOCKET NO.
)
)

Archive Date: 09/06/16

08-34 533 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for deg

REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
P. M. Johnson, Associate Counsel
INTRODUCTION
The Veteran served on active duty for periods that included: June 18, 1982
This matter came before the Board of Veterans' Appeals (hereinafter Board)

In a February 2013 decision, the Board denied the Veteran's claim of entitl

In November 2014, the Board remanded the issue to the Agency of Original Ju
In October 2015, the Board denied the Veteran's claim of entitlement to an
FINDINGS OF FACT

1. Prior to February 12, 2015, the Veteran's lumbar spine disability was ma

2. Prior to February 12, 2015, the Veteran's lumbar spine disability was no
CONCLUSION OF LAW

Prior to February 12, 2015, the criteria for an initial rating of 40 percen
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has been assigned an initial 10 percent disability rating for t
The Veteran was afforded a VA examination in March 2006.

He reported that

Range of motion of the lumbar spine was from 0 degrees to 95 degrees with p
VA progress notes from June 2008 to August 2008 were received.

In June 200

An August 2008 MRI was received in October 2008, which revealed findings of
The Veteran was afforded another VA examination in May 2011.

He reported p

On lumbar examination, he was able to forward flex to 80 degrees with stiff

The Veteran was afforded another VA examination in February 2015.

The Vete

The examiner noted that the Veteran was limited in his ability to bend and

Disability ratings are determined by applying criteria set forth in VA's Sc

In determining a disability evaluation, VA has a duty to consider all possi

Where the appellant has expressed dissatisfaction with the assignment of an

Here, the Board finds that the evidence does not suggest that the functiona

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. 4.

Although pain may be a cause or manifestation of functional loss, limitatio

The Veteran's low back disability is evaluated under Diagnostic Code 5242,

A 20 percent evaluation is warranted when the forward flexion of the thorac

A 40 percent evaluation is warranted when forward flexion of the thoracolum

A 50 percent evaluation is warranted when there is unfavorable ankylosis of

The criteria under the General Rating Formula are to be applied with or wit

In addition to the General Rating Formula, a Veteran suffering from interve

The IVDS provides that a 10 percent evaluation is warranted when the vetera

A 20 percent evaluation is warranted when the veteran has incapacitating ep

A 40 percent evaluation is warranted when the Veteran has incapacitating ep

A 60 percent evaluation is warranted when the Veteran has incapacitating ep

An incapacitating episode is "a period of acute signs and symptoms due to i

After considering all of the evidence of record, the Board finds that a 40

During his examination, the Veteran reported that his condition could start

However, the Board finds that the evidence does not more nearly reflect unf

The Board also finds that a higher 60 percent rating is not warranted under
Extraschedular Consideration

The Board finds that this case should not be referred to the Director of th

The Board recognizes that the Veteran has reported functional impairment su

Additionally, the Board finds that missing approximately three to five days

Accordingly, for the period prior to February 12, 2015, an initial disabili
Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provision
The Veteran's service treatment records, VA medical treatment records, and

All obtainable evidence identified by the Veteran relative to his claims ha

ORDER
For the period prior to February 12, 2015, an initial disability rating of
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs